Preparing Your Expert Witness for Trial – Two Rules to Know
Having an expert witness who is prepared for the courtroom could be the key to winning your case. In order to do this, you have to prepare the expert for anything that may occur during a trial. You also want to prepare yourself. No one hates surprises more than an attorney in a courtroom full of people.
Expert Witness Qualification
The first thing you should do is make sure your witness qualifies as an expert under FRE 702 and that there is a purpose for your expert under FRE 703. It’s crucial that you go over these rules with your witness as opposing counsel will do anything possible to make objections to their qualifications and reliability of the witness’s studies.
A witness qualifies as an expert based on their skill, knowledge, education, training, and education. An expert may testify in the form of an opinion if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case.
It is important to go through FRE 702 to make sure that your expert qualifies under all of the above. If they do not meet those qualifications they are not an expert and the trier of fact would not learn anything from them being on the stand. If they do not qualify, and you place your witness on the stand, the opposing party is going to make a FRE 702 objection which they are going to win.
Once you have determined that your expert is a witness, determine what your expert is basing their opinion on. If your expert is basing their opinion on fact or data from the case that the expert was personally made aware of, then there is a basis for your expert. Experts are also permitted to use information that is commonly used in their field of study that other experts would use. If there is no basis for your expert’s testimony, and it will not help the jury understand the case, your expert will become inadmissible.
Expert Witness Preparation
Next, you should prepare your witness for the courtroom. It is important that an expert witness knows the difference between the legal basis of the case and the factual issues that will help the jury to better understand what is happening in the matter presented before them. The expert is not there to provide the trier of fact with the law, they are there to help them better understand something that a lay person would not normally understand without the skill or knowledge of that of the expert.
One of the major steps in preparing an expert is to go over direct examination and cross examination. You want to be certain of what someone you are putting on the stand is going to say in an open courtroom.
There are many benefits to preparing an expert for trial. One benefit being that your expert does not seem partial to one side or bias. Another benefit to expert preparation is to go over questions in advance that you may ask your witness when they are on the stand. You never want to blindly ask someone on the stand a question you do not already know the answer to. By preparing a witness, they will hear the questions in advance and you get the benefit of hearing the answers. You also get to prepare by asking questions in anticipation of what opposing counsel will ask so your expert knows what to expect.
When it comes to cross examination you want to make sure that your expert knows how to correctly respond to simple questions or questions that they do not know. Responding incorrectly could lead to a witness losing credibility. If opposing counsel asks a question, and the expert says they do not know in response to a question pertaining to their own study, they are going to lose their credibility and reliability of their own studies.
Demeanor and Dress:
Preparing your witness affords you the opportunity to make sure that their demeanor and dress is courtroom appropriate. You wouldn’t want a witness showing up in casual-dress, biting their nails or playing with their watch while on the stand. Going over this beforehand will ease your mind the morning of trial, as you will know for certain that your expert knows to dress and act professionally.
Prior to trial, go through the demonstrations that will be used at trial with your expert. This will afford you the ability to make sure everything works correctly. It will also allow you to see beforehand what your expert plans to use at trial and how it applies to your case. This will also afford you the opportunity to make sure that everything that you need in the courtroom for any demonstrations will be available during the trial. It would be quiet embarrassing if you were trying to play something on a DVD and there was not a computer handy to use. Not to mention you could have a major point on that DVD and may not be able to play it.
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